At present the decision to detain someone is made by an immigration officer without any judicial oversight. There is no time limit on immigration detention, and detainees have great difficulty getting legal representation to apply for bail. Thus their access to a legal challenge to the deprivation of liberty is severely restricted. While the UK Border Agency(UKBA) claim that no-one is detained for ‘longer than is necessary’, there is no legal limit on detention. Figures from the Home Office in February 2010 showed that 255 people had been held in immigration detention for more than a year in 2009 – and 45 for more than two years. In reality, since UKBA keeps no figures on cumulative detention, more people have been detained for longer than the figures suggest. The Home Office has the power to detain someone either to examine their asylum claim if they deem that claim to be straightforward, or if they believe the person will abscond, or that their removal from the UK is imminent.In practice, for many detainees there are barriers to their removal, such as lack of documentation, or the destination country being unsafe, which means that hundreds of people are held for long periods without prospect of release. There are just over 2500 detention spaces.
The mental toll of indefinite detention is manifested in many ways, not least in the amount of self-harming incidents among those held. In 2009, 215 people needed medical treatment for self-inflicted injuries, a rise of 20 per cent on 2008, according to Home Office statistics.
The First Tier Tribunal of the Immigration and Asylum Chamber (currently operated separately from HM Court Services) often require a lower burden of proof from the Home Office than from the applicant. If the HO claims that a person will abscond no evidence is required. Immigration detainees have great difficulty securing release from detention through the courts. Just 18% of applications for bail are successful. Although under the law there is a presumption in favour of liberty, in practice many immigration judges put the emphasis on the detainee to prove why he or she should be released from detention, rather than placing the burden of proof on the Home Office to provide evidence as to why the deprivation of liberty is deemed necessary.
There are no written records of bail hearings. Only the judge’s decision is recorded so it is impossible to provide evidence of errors or of the basis on which decision are made for future challenges.
Why is this idea important?
It would reaffirm that the deprivation of liberty is a serious matter which should never be undertaken lightly and only in strict accordance with the law and published policy instructions, and that the government should be accountable for the exercise of the power that it has under law.